AS (Afghanistan) v Secretary of State for the Home Department

UNHCR eligibility guidelines and general country reports are important evidence, but they are not presumptively binding merely because of their source. A tribunal must assess them alongside all other evidence and decide their weight principally by reference to intrinsic quality. It must give them considerable respect and provide adequate reasons if it reaches a different conclusion. The assessment of internal relocation remains holistic and individualised. A carefully reasoned evaluative assessment of extensive country evidence will not ordinarily disclose an arguable error of law or satisfy the second appeals test.

The applicant, an Afghan national, challenged the refusal of his asylum, humanitarian protection and human rights claims, particularly in relation to relocation to Kabul. The First-tier Tribunal dismissed his appeal in 2015. An earlier Upper Tribunal country-guidance decision, reported at [2018] UKUT 118 (IAC), found that return to Kabul was generally safe and reasonable for a single healthy man, subject to individual assessment. The earlier Court of Appeal appeal, reported at [2019] 1 WLR 5345, was allowed only on a risk calculation and the matter was remitted.

After receiving further expert and country evidence, the Upper Tribunal dismissed the appeal on 1 May 2020. The applicant sought permission to appeal, arguing that the Upper Tribunal had been required to follow the UNHCR’s August 2018 eligibility guidelines unless there were strong countervailing reasons, and had failed to give adequate reasons on risk and reasonableness. The central issue was whether general UNHCR guidelines and reports had presumptively binding status.

The application for permission to appeal was refused. Lord Justice Davis gave the judgment, and Lord Justice Arnold agreed.

1. Second appeals threshold. The Upper Tribunal’s conclusion that relocation to Kabul would generally be safe and reasonable for a single healthy man was an evaluative conclusion based on the totality of the evidence. The complaints did not disclose an arguable error of law and could not satisfy the second appeals test.
2. Status of UNHCR material. General UNHCR eligibility guidelines and reports are recommendations and evidence, not presumptively binding directions. They must form part of the overall assessment, but their weight depends principally on intrinsic quality rather than the status of their author. The decision-maker must assess the competing evidence and determine the relative weight to be given to each item.
3. Authorities on UNHCR material. IA (Iran) [2014] 1 WLR 384 concerned a specific UNHCR decision on refugee status and did not impose the same approach in relation to general eligibility guidelines or reports. The later decision in R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] AC 1321 supported treating UNHCR material as part of the overall examination of the particular circumstances. HF (Iraq) [2014] 1 WLR 1329 was binding authority on the point and confirmed that UNHCR material commands respect because of its intrinsic quality, while questions of weight remain for the decision-maker.
4. Application to the Upper Tribunal’s decision. The Upper Tribunal had considered the UNHCR guidelines and other materials carefully, accorded them the greatest respect, and gave substantial reasons for declining to adopt their generalised conclusion. Its detailed consideration of security, living conditions, documentation, social support, employment, health care and the individual circumstances of the applicant was sufficient. Its conclusion that each case required an individualised assessment was correct.
5. There was no other compelling reason for the matter to proceed before the Full Court. Permission to cite the judgment was given.

1. Court of Appeal (Civil Division): On 21 January 2021, permission to appeal from the Upper Tribunal’s decision of 1 May 2020 was refused under the second appeals test.
2. Upper Tribunal (Immigration and Asylum Chamber): On 1 May 2020, after remittal and consideration of further evidence, the appeal was dismissed and permission to appeal was refused.
3. Court of Appeal: In the earlier appeal, reported at [2019] 1 WLR 5345, the appeal was allowed on the issue of risk arising from an erroneous casualty calculation and remitted for further consideration. The appeal was dismissed in all other respects.
4. Upper Tribunal (Immigration and Asylum Chamber): The earlier country-guidance decision, reported at [2018] UKUT 118 (IAC), upheld the general safety and reasonableness of relocation to Kabul, subject to individual circumstances.
5. First-tier Tribunal: The applicant’s asylum, humanitarian protection and human rights appeal was dismissed on 26 July 2015.